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April 21, 2007

NY Gov. Spitzer as the true sentencing action hero

Despite his action hero movie persona, California Governor Arnold Schwarzenegger continues to play the role of villain in various sentencing reform stories: e.g., authorizing (and then halting) work on a secret death chamber; persistently failing to deal with severe prison problems; undermining efforts to reform the state's extreme three-strikes law. Meanwhile, on the other coast, New York Governor Eliot Spitzer is showing how easy it can be for a motivate chief executive to move forward on sentencing reform.

As detailed in this press release, yesterday Spitzer announced several appointments to the New York State Commission on Sentencing Reform. Spitzer on his own initiative created this Commission last month through Executive Order 10, which calls upon the Commission to "conduct a comprehensive review of New York’s current sentencing structure, sentencing practices, community supervision, and the use of alternatives to incarceration." And not one to waste any time, Spitzer's executive order creates an ambitious agenda and a tight timeline for this Commission's work:

The Commission shall make recommendations for amendments to state law that will maximize uniformity, certainty, consistency and adequacy of a sentence structure such that: (a) the punishment is aligned with the seriousness of the offense; (b) public safety is protected through the deterrent effect of the sentences authorized and the rehabilitation of those that are convicted; and (c) appropriate consideration is accorded to the victims of the offense, their families, and the community.

Reports of the Commission shall include, but not be limited to, an evaluation of the impact that existing sentences have had on length of incarceration, the impact of early release, the impact of existing sentences on the length of community supervision, recommended options for the use of alternatives to incarceration, and an analysis of the fiscal impact of the Commission's recommendations.

The Commission shall issue an initial report of its findings and recommendations on or before September 1, 2007, and a final report on or before March 1, 2008.

As the title of this post states, based on Executive Order 10, Spitzer is the true sentencing action hero. California has already provided an impressively detailed script of mistakes to avoid for states interested in sound sentencing reform. I am hopeful that New York is on the way to charting a much better path.

Schwarzenegger halts work on death chamber of secrets

Though not quite as intriguing as a Harry Potter novel, the plot continues to thicken in the on-going saga of California and the death penalty. As detailed in this news story, work on new death chamber that the state was building (in secret) has now been halted. Here are more details:

Gov. Arnold Schwarzenegger today halted construction of a new death chamber at San Quentin prison, the latest setback for authorities trying to resume executions after a 15-month hiatus triggered by a challenge to the state's procedures for lethal injections. The order came after legislators complained vociferously that they had not been consulted about the project, which apparently was conducted in secret.

"The governor has asked me to stop the project," James Tilton, secretary of the Department of Corrections and Rehabilitation, said in a midmorning call with a group of reporters. The governor "is very concerned about good communications with the Legislature. We should have done a better job of it."

Last week, it was revealed that state officials had begun quietly building a new death chamber. At the time, corrections officials said they had not consulted with the Legislature because the cost of the project would be only $399,000. State law requires legislative approval of any project that costs $400,000 or more. The tiny gap precipitated skepticism from lawmakers who indicated they thought the administration was engaged in an end-run around the Legislature. State Sen. Gloria Romero (D-Los Angeles) scheduled a hearing for April 25 in Sacramento. Today, Tilton and his chief assistant, Steve Kessler, acknowledged that the project had already cost $725,000.

Last December, a federal judge in San Jose ruled that California's application of its lethal injection death penalty procedures violates the constitutional prohibition against cruel and unusual punishment. The legal challenge to the state's death penalty protocol has effectively halted executions since February, 2006. U.S. District Judge Jeremy Fogel's ruling left the door open for the resumption of executions by lethal injection if the states come up with a revised procedure that the judge finds constitutionally acceptable.

April 20, 2007

More proof there are no boring executions (except perhaps in Texas)

ODPI has here links to the latest news coverage of an Ohio death row inmate's decision, after previously giving up legal challenges, to now try to join a lethal injection lawsuit just four days before his April 24 scheduled execution. I had thought that James Filiaggi's execution was going to go forward next week without any last-minute litigation or even much hub-bub, but now it seems that legal papers will be flying. Stay tuned.

A written opinion from the Seventh Circuit in the Georgia Thompson case

Though not as remarkable as its initial decision to order an acquittal right after oral argument, Seventh Circuit today issued its written decision in the Georgia Thompson case (basics here and here). The opinion in US v. Thompson, No. 06-3676 (7th Cir. Apr. 20, 2007) (available here) is authored by Judge Easterbrook, and it closes with this sentiment:

Sections 666 and 1346 have an open-ended quality that makes it possible for prosecutors to believe, and public employees to deny, that a crime has occurred, and for both sides to act in good faith with support in the case law. Courts can curtail some effects of statutory ambiguity but cannot deal with the source. This prosecution, which led to the conviction and imprisonment of a civil servant for conduct that, as far as this record shows, was designed to pursue the public interest as the employee understood it, may well induce Congress to take another look at the wisdom of enacting ambulatory criminal prohibitions. Haziness designed to avoid loopholes through which bad persons can wriggle can impose high costs on people the statute was not designed to catch.

Thoughtful DC Circuit opinion on Booker et al.

Published sentencing decisions from the DC Circuit are relatively rare and are usually quite thoughtful. Today's opinion US v. Bras, No. 05-3190 (DC Cir. Apr. 20, 2007) (available here), holds up the Circuit's Booker traditions. Here is how it begins:

Antonio C. Bras pled guilty to conspiracy to commit bribery and highway project fraud in violation of 18 U.S.C. § 371, an offense for which the statutory maximum is five years in prison. He was sentenced to 37 months’ incarceration under the regime announced in United States v. Booker, 543 U.S. 220 (2005). The validity of that sentence is the only issue on appeal.

Bras raises four challenges to his sentence. First, he contends that the district court sentenced him in violation of Booker principles, because it increased his sentence based on facts found by the court itself, using a preponderance of the evidence standard. Second, Bras maintains that the court violated his Sixth Amendment right to confront the witnesses against him, by increasing his sentence based upon testimonial evidence that was not subject to cross-examination. Third, he argues that the court used unreliable evidence to calculate the loss that his crime caused the government, and thereby erred in calculating his advisory Sentencing Guidelines range. Finally, Bras claims that his sentence was unreasonable, because the district court failed to adequately consider the relevant statutory sentencing factors. Finding these challenges to be without merit, we affirm the judgment of the district court.

Tenth Circuit shows inconsequence of presumption of reasonableness

In an interesting little (unpublished) opinion, the Tenth Circuit in US v. Davila-Salvatierra, No. 06-2053 (10th Cir. Apr. 19, 2007) (available here), reveals how inconsequential the preumption of reasonableness is for post-Booker reasonableness review. In Davila-Salvatierra, the defendant would seem to have a pretty good set of arguments for a below-guideline sentence, though the district court decided to follow the guidelines. The Tenth Circuit, citing the pendency of Rita and Claiborne, decided not to apply its usual presumption of reasonableness. But then it concluded that, on the facts of the case, "a bottom-of-the- Guidelines sentence provides just punishment, promotes respect for the law, affords adequate deterrence, and protects the public from future harm."

Will Ohio have an execution next week?

Gov. Ted Strickland will not grant clemency to James Filiaggi, a former Elyria man set to die by lethal injection Tuesday for shooting and killing his ex-wife in 1994. Strickland said yesterday he agrees with the state parole board's recommendation to deny clemency to Filiaggi. Filiaggi is on death row for chasing his ex-wife, Lisa Huff Filiaggi, from her West 29th Street house in Lorain to a neighbor's home and shooting her at point blank in January 1994. Filiaggi has not requested clemency.

This is not a surprising development, and the in-state buzz has been that Filiaggi was not planning to make any last minute legal challenges. However, ODPI is reporting here a important new development:

An attorney for James Filiaggi is filing a motion in US District Court today seeking inclusion of James Filiaggi in the Cooey v. Taft case challenging Ohio's lethal injection protocol. An accompanying motion seeking a stay of execution is also to be filed. These motions are not being filed against Filiaggi's wishes.

A prior scheduled Ohio execution of Kenneth Biros was postponed last month as a result of Ohio's lethal injection litigation (which is now pending possible en banc review in the Sixth Circuit). Because Filiaggi is seeking to join on to this litigation very late in the process, it will be interesting to see if this new development with impede Ohio's efforts to be the only state other than Texas to execute a defendant in the last three months.

Linking abortion and death penalty debates

Though many folks on both sides of the political isle view debates over abortion and the death penalty to be completely unrelated, here is one op-ed seeking to link the two. This piece is authored by John Lillpop, who claims to be "a recovering liberal." Here's is the heart of his lament:

[A]ccording to liberals like Hillary, women have a "constitutional right" to kill a fetus that is close to birth. Those same liberals will argue that it is "cruel and unusual" to stick a needle into a brutal serial killer in order to deliver justice.

April 19, 2007

Qwhite-collar conviction

Another high-profile sentencing is now in the works after, as detailed here, another high-profile white-collar conviction:

Joseph Nacchio, who built Qwest Communications International Inc. into the fourth-largest U.S. phone company and presided over a $100 billion drop in market value, was convicted of insider trading. A federal jury in Denver today found Nacchio, Qwest's former chief executive officer, guilty of selling stock based on private warnings from top lieutenants that the company would miss revenue targets.

Prosecutors said Nacchio made $101 million by illegally trading on inside information he withheld from investors. "If you don't tell, you can't sell,'' Assistant U.S. Attorney Colleen Conry told jurors in closing arguments. The jury found Nacchio guilty on 19 counts of insider trading for stock trades totaling $52 million. He was found not guilty of 23 counts relating to earlier trades totaling $49 million.

The conviction of Nacchio, 57, caps a U.S. crackdown on corporate fraud that began when Enron Corp. collapsed in 2001. Hundreds of executives have been convicted, including three ex- CEOs, Enron's Jeffrey Skilling, Bernard Ebbers of WorldCom Inc. and John Rigas, founder of Adelphia Communications Corp.

Nacchio left the courthouse with his wife Anne without commenting. The panel of eight men and four women convicted Nacchio after six days of deliberations. He faces up to 10 years in prison and a $1 million fine on each count. U.S. District Judge Edward Nottingham set Nacchio's sentencing date for July 27.

Today in US v. Livesay, No. 06-11303 (11th Cir. Apr. 19, 2007) (available here), the Eleventh Circuit reversed as unreasonable the probation sentence given to Kenneth Livesay, the former Assistant Controller and Chief Information Officer of HealthSouth Corporation. Here are some passages spotlighting the heart of the opinion:

Livesay's sentence of probation wholly fails to account for the nature and circumstances of his participation in this massive fraud-based criminal conspiracy and the need for his sentence to reflect the seriousness of his crimes....

Livesay’s sentence of probation — given the factual circumstances of this case, the major league economic crimes involved, and the advisory guidelines range of 78 to 97 months’ imprisonment — thus undermines the purposes of § 3553 by utterly failing to provide deterrence.

Interesting piece on California's prison woes

A favorite reader sent me this link to a piece from The Weekly Standard entitled, "California Behind Bars: Overcrowding, unionization and other prison problems. Here is an excerpt:

Surrounded by subdivisions with names like Almond Valley and Sierra Vista, the California State Prison in Lancaster looks more like an industrial park than a maximum-security facility. But the lethal throb of high voltage electricity coursing through its double-perimeter fence leaves no doubt that this is a place one enters with trepidation.

"This prison opened in 1993 with a capacity of 2,200, but today we have 4,300 prisoners, 468 of which are in temporary beds," says warden William Sullivan as we stroll across a common monitored by marksmen in looming guard towers. "I get 200 new inmates a week and 8,000 more are waiting in L.A. County jails for room to move in here."...

Of the many unpleasant tasks with which state governors must deal, prisons probably rank at the top of the list. Unlike education, infrastructure, and the environment, prisons have no natural constituency. Most states have a prison policy that can be summed up in one sentence: Get the bastards off the streets.

Over the past quarter century, California has done exactly that. The main tool prosecutors use is a "Three Strikes" law that mandates lifetime incarceration for people convicted of three felonies. It's a great law. Since its adoption in 1994, thousands of the state's most violent offenders have been locked away for good. Unfortunately, these sociopaths all too often are joined behind bars by nonviolent drug offenders, technical parole violators, and people who are more mentally ill than criminal.

Tough-on-crime sentencing enhancements, less discretion for trial judges, and the switch from indeterminate to fixed sentencing have resulted in a 600 percent increase in California's prison population between 1980 and 2006. Designed to hold 81,000 inmates, California's 33 prisons now house close to 174,000 men. Crowding is so intense that 16,000 convicts sleep in hallways, classrooms, and other areas not intended for habitation. Projections indicate that 23,000 additional inmates will be added within five years, which could prompt a corresponding jump in a suicide rate that already is twice the national average for prisoners.

The number 2,000,000 in sentencing perspective

I see from my site-meter summary that today I passed 2,000,000 total visits since the meter started running in late June 2004. That milestone prompts me not only to thank all of my readers for support and encouragement, but also to do a Harper's Index, sentencing style:

A bleg for a notable transcript

One of my students is working on a paper discussing child rape as a capital crime, and he is trying to get complete information about the crime and sentencing of Patrick Kennedy. (Kennedy is the defendant from Louisiana who was the the first defendant (and I believe is still the only defendant so far) to be sentenced to death for a non-homicide crime in the modern death penalty era.) Here is what my student is having trouble finding:

The transcript of record I am looking for is from the Patrick Kennedy case referenced in Joanna D’Avella's article "Death Row for Child Rape". It is note 2 and reads, "See Transcript of Record at 6068–69, State v. Kennedy, 854 So. 2d 296 (La. 2003) (No. 98-1425) [hereinafter Transcript of Record]."

A systematic examination of prison growth

John Pfaff has a fascinating new article that examines the theories and the empirical literature on the forces driving prison growth in the US over the past three decades. The paper, entitled "The Growth of Prisons: Toward a Second Generation Approach" is available at this link. Here is the abstract:

Over the past three decades, the US prison population has soared from 300,000 inmates to 1.5 million. In recent years, many scholars have devised rigorous empirical models to try to determine what forces have been most responsible for this impressive growth. This article reviews these studies and finds that all suffer from important shortcomings that limit the extent to which they accurately identify causal mechanisms. The problems are both technical and conceptual. Technically, most studies either fail to control for several significant empirical defects ― such as endogeneity, omitted variable bias, and colinearity ― or so do unconvincingly. Conceptually there are several issues. In some instances, for example, it is unclear whether the variable chosen to test a particular causal theory is an effective or accurate proxy; in others, the theory itself does not appear to be formulated correctly. This article sets forth the problems with the current studies and suggests technical and conceptual improvements for future work.

Revving up for the Gonzales hearing

This morning's Senate Judiciary Committee hearing about the US Attorney firings with AG Alberto Gonzales can be followed here, and How Appealing has some of the media coverage linked here. Here are a few of my prior posts on this brouhaha:

April 18, 2007

A quick James recap and tea leaves

In order to give folks a chance to discuss SCOTUS decisions that have nothing to do with abortion, let me recap prior James coverage and look forward based on that ruling to other sentencing work ahead:

Looking ahead, I come to these few tentative conclusions based on James:

1. None of the Justices save Justice Thomas likely has any deep interest in reversing the "prior conviction" exception to the Apprendi-Blakely rule.

2. Neither Justice Breyer nor Justice Kennedy vote as if he is genuinely troubled by broad applications of harsh mandatory minimum sentences. They both are good at talking the talk, but neither walk the walk. Now, if you murdered someone and get sentenced to death by a jury, then Justices Breyer and Kennedy are on your side.

3. In light of the harsh outcome, the long gestation, and strange voting blocks in James, I now have even less idea what to expect in Claiborne and Rita (except perhaps that Justice Breyer will continue to show an (uninformed) affinity for the guidelines and the US Sentencing Commission).

The oral argument in Panetti

A quick scan of this transcript of today's U.S. Supreme Court oral argument in Panetti v. Quarterman, No. 06-6407, confirms my instinct that the case could be of great symbolic importance, but it unlikely to have broad practical significance. But, with a focus on both the symbolic and practical realities of the death penalty, I cannot help but spotlight one of the final points stressed by Texas' Solicitor General at oral argument:

In our prisons there are unfortunately a great many people suffering from some degree of mental illness.... [An extreme] sort of delusion unfortunately is not uncommon on death row and it is not uncommon in prisons for paranoia -- the testimony of one of Panetti's experts, Doctor Conroy said, quote, "The major portion of our population in our in-patient units are diagnosed with some form of schizophrenia."

California considering eliminating LWOP for juveniles

A helpful reader sent me a link to this interesting article discussing a California bill to eliminate life-without-parole (LWOP) sentences for juveniles. Here are the highlights:

After testimony from a teen murderer who later became an ordained priest, a state Senate committee narrowly approved legislation Tuesday that would prevent juveniles from being sentenced to prison for life without the possibility of release.

State Sen. Leland Yee's legislation survived its first committee hearing as Yee argued that young killers can be rehabilitated. Yee, D-San Francisco, is seeking to end life-without-the-possibility-of-parole sentences for teenagers in a measure that would allow for the possibility of parole for teen murderers after 25 years behind bars. The bill would overturn a component of Proposition 115, a tough-on-crime ballot initiative passed by voters in 1990.

The legislation pits law enforcement groups, which argue that there are teens who commit such horrendous crimes that they should spend the rest of their lives in prison, against some child psychiatrists and religious groups, which argue that teens' brains are still developing and even those who kill should be given a chance at redemption. Parole would be granted only to inmates who convinced both the state's parole board and governor that they deserve to be released.

Supporting the bill Tuesday was James Tramel, who argued that his life story proved that even murderers can change their ways and contribute to society. Tramel was convicted of murder in 1985 for his role in the killing of a homeless man in Santa Barbara. He was granted parole last year, though, after becoming an ordained Episcopal priest while behind bars. Tramel had conducted services for the Episcopal Church of the Good Shepherd in Berkeley by phone from a prison in Vacaville....

Law enforcement groups oppose Yee's bill, however, arguing that judges have discretion now to sentence someone younger than 18 to life in prison without parole or allow for the possibility of parole. Teens who receive the lifetime sentence deserve it, said John Lovell, lobbyist for the California Police Chiefs Association. "We are talking about 16- and 17-year-olds who have evidenced such a level of sophistication and malice that they are being tried as an adult,'' Lovell said. "We make a mistake when we talk of these people as children and youth. They are people who have committed horrific crimes."

The number of juveniles sentenced to life in prison is minimal; the advocacy group Human Rights Watch said Tuesday there are 227. But the group noted that African American youths receive the life sentence at 22 times the rate of white youth.

Another notable (unpublished) below-guideline sentence affirmance

Thanks to an informed reader, I lhave earned of an interesting (but unpublished) opinion today from the Fourth Circuit affirming a below-guideline sentence in US v. Pasquantino, No. 06-4282 (4th Cir. Apr. 18, 2007) (available here). (Recall that last week, the Fifth Circuit in Anderson issued a significant opinion affirming a below-guideline sentence in unpublished form.)

Pasquantino involves a wide fraud case that, on non-sentencing issues, has already been to the Supreme Court, and it's procedural issues have the Fourth Circuit panel talking at length about the reach and grounds for appropriate habeas relief.

In addition to a lengthy discussion habeas fans wil enjoy, the Pasquantino panel has an extended final discussion rejecting a number of government attacks on the reasons given for the below guideline sentence. Among the notable quotables from the opinion: "the district court was entitled to consider factors for [one defendant's] variance sentence that it ordinarily would not consider under the Guidelines."

When Justice Scalia sounds like Justice Brennan

I have long joked that if you were to read the Blakely majority opinion with your eyes closed ― which is not easy, but worth the effort ― you might think it was authored by the late Justice Brennan and not Justice Scalia. Though some rhetoric in Blakely is classic Scalia, much of the pro-defendant sentiments are straight from a classic Brennan script. The trend continued with Justice Scalia's work in Gonzales-Lopez last year(commentary here), where Justice Scalia joined and wrote for the "liberal wing" of the Court to affirm the reversal of a drug dealer's conviction based on a debatable interpretation of the Sixth Amendment.

Now we get Justice Scalia's work in dissent in James (basics here; commentary here), which includes this Brennanesque passage:

Imprecision and indeterminacy are particularly inappropriate in the application of a criminal statute. Years of prison hinge on the scope of ACCA's residual provision, yet its boundaries are ill defined. If we are not going to deny effect to this statute as being impermissibly vague, see Part III, infra, we have the responsibility to derive from the text rules of application that will provide notice of what is covered and prevent arbitrary or discriminatory sentencing. See Kolender v. Lawson, 461 U.S. 352, 357 (1983). Offenders should be on notice that a particular course of conduct will result in a mandatory minimum prison term of 15 years. The Court prefers to keep them guessing.

Especially because I think Justice Scalia gets the better of the debate in James, it is disappointing and telling that he does not get the votes of either of the new Justices in this case. Once again it is clear that, at least in the arena of non-capital criminal jurisprudence, President Bush has failed to appoint Justices in the mold of Scalia and Thomas (who dissented on even broader grounds).

Of course, Justice Scalia also sound like himself in his James dissent. I found especially amusing and telling these closing lines:

Congress has simply abdicated its responsibility when it passes a criminal statute insusceptible of an interpretation that enables principled, predictable application; and this Court has abdicated its responsibility when it allows that. Today's opinion permits an unintelligible criminal statute to survive uncorrected, unguided, and unexplained. I respectfully dissent.

How rare events skew perspectives

Eugene Volokh has a great post here about how the law ought to respond to the VT tragedy that picks up a theme I often stress in discussions of the death penalty. Here is a snippet:

It turns out that yesterday, about 25 to 40 people were killed in alcohol-related homicides, not including those that died because of their own alcohol consumption. Each year, between alcohol-related drunk driving deaths and alcohol-involved murders, about 10-15,000 Americans (not including the responsible drunk drivers themselves) die. That translates into roughly 25 to 40 deaths per day (the range is wide because the source numbers are necessarily back of the envelope estimates), about the same number as the extra homicide deaths from yesterday's mass shootings. If you counted people whose alcohol consumption killed themselves, the total would likely be far more.

Eugene's point is not to minimize the VT tragedy, but rather to spotlight that rare and sensational events often skew our ability to do sensible cost-benefit assessments of proposed legal reforms. And those who work in the arena of sentencing reform understand this reality whenever a single child abduction or parolees crime prompts new (and often unwise) sentencing proposals nationwide.

One interesting variation on this theme relates to whether and how Supreme Court Justices can have their own perspectives skewed. Specifically, as I listened to all the news today concerning the VT shooters mental problems, I wondered if the Supreme Court's consideration of the Panetti competent-to-be-executed case this afternoon might have a much different look and feel now.

A few quick reactions to James

A too-quick read of today's James opinion (basics here) prompts these first-cut reactions:

1. Except for Justice Thomas (who pens a brief solo dissent to state again his modern opposition to the prior conviction exception), nobody seems concerned about the Sixth Amendment implications of having judges assess what might qualify as a "violent felony" under the Armed Career Criminal Act. The majority opinion says this is a non-issue because in "determining whether attempted burglary under Florida law qualifies as a violent felony under §924(e)(2)(B)(ii), the Court is engaging in statutory interpretation, not judicial factfinding." The main dissent does not engage this issue, suggesting only Justice Thomas disagrees.

2. In light of point 1, just why did this little opinion in a little criminal case take so long? My gut instinct is that there was a "fight" over Justice Souter's vote and perhaps also Justice Breyer's vote. Justice Scalia's dissent seems awfully lengthy and detailed for a dissent, and there are passages of Justice Alito's majority opinion in James that seem written to hold on to five votes. (See, e.g., point 3 below, discussing a classic Breyerian passage in the majority opinion.)

3. In a passage that is notable with Claiborne and Rita pending, the James majority opinion gives the US Sentencing Commission and its guidelines much more credit than deserved. At pages 12-13, the James majority discusses the "crime of violence" definition in the career-offender guideline which parallels the "violent felony" term under ACCA at issue in James. In this discussion, the majority quotes a 1992 opinion from then-Judge Breyer as part of a claim that the career-offender guideline is "based on the Commission's review of empirical sentencing data and presumably reflects an assessment that attempt crimes often pose a similar risk of injury as completed offenses." In fact, I think that the USSC's own research generally shows considerable dysfunction in the operation of the career-offender guideline. Moreover, crack sentencing realities highlight that USSC's empirical research is not always ― indeed, is not often ― reflected in its guidelines.

4. As I will explain more fully in a subsequent post, Justice Scalia's dissent reveals that Justice Scalia is continuing his modern tendency to channel Justice Brennan through his votes and opinions in non-capital criminal cases.

5. What about the rule of lenity? Justice Scalia mention the rule of lenity only once in passing in his dissent, and the majority does not engage the point. There can be little doubt that the statute being interpreted in James is vague and debatable (indeed, Justice Scalia suggests it is unconstitutionally vague). Isn't James exactly the type of case in which the rule of lenity ought to serve as a decisive canon of construction?

Splintered SCOTUS upholds sentence enhancement in James

Though the rest legal world will sure obsess endlessly about the 5-4 Supreme Court ruling today upholding a federal ban on partial birth abortions, I plan to obsess (endlessly?) about the 5-4 Supreme Court ruling today upholding an application of a criminal history sentencing enhancement in James. Here is the basic early report from SCOTUSblog on James:

In another 5-4 decision, the Court ruled that an individual convicted of attempted burglary under state law has committed a "violent felony" for purposes of a mandatory 15-year sentence under federal law dealing with armed criminals. The ruling came in James v. U.S. (05-9264). Justice Samuel A. Alito, Jr., wrote for the majority. The voted produced an unusual array: with Alito in the majority were Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Kennedy and David H. Souter.

Based on the unusual vote line-up and the outcome, I suspect James will provide many tea leaves about future Sixth Amendment cases. I will, of course, post and comment on the opinion once it is available.

UPDATE: The James opinion can now be accessed here. It runs 44 pages total (including the syllabus). Here is the dissenting line-up: "SCALIA, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined. THOMAS, J., filed a dissenting opinion." Why can't my printer go faster!!

Good works Booker break for white-collar offender in DC

The Washington Post has this detailed coverage of a notable federal sentencing of a white-collar offender yesterday in Washington. Here are some of the highlights:

Downtown developer Douglas Jemal avoided prison when a federal judge yesterday sentenced him to probation and declared that the countless good works he has performed for Washington and its residents far outweighed his financial fraud conviction. U.S. District Judge Ricardo M. Urbina said the maverick leader of Douglas Development Corp. was "one of those rare cases" and that he felt compelled to balance the community's views about Jemal's character against the prosecution's demand for punishment....

Prosecutors initially sought a prison sentence of up to five years for the financial fraud conviction, and later agreed that 33 to 41 months was a proper penalty. The judge's rejection of the prison sentence floored the U.S. attorney's office and its public corruption team, which spent three years on the case. Jemal's sentencing came nearly six months after a jury rebuffed most of the government's case, acquitting him of charges that he had bribed a former D.C. government official in return for sweetheart city leases on an impound lot and other properties....

Lead federal prosecutor Mark H. Dubester had urged the judge to send Jemal to prison to punish him and deter other business leaders from committing similar crimes. Dubester also stressed that a prison term would give the public confidence that wealthy white-collar criminals -- who can afford top-notch lawyers and give generously to charitable causes -- won't get off easier than "little guys."... "Clearly, we're disappointed," Jeffrey A. Taylor, U.S. attorney for the District of Columbia, said in a statement. "In our view, this sentence -- well below that called for by the sentencing guidelines -- sends the wrong message to the citizens of the District and the many honest businesspersons of this city."

The judge said he compared two disparate groups in reaching his decision: convicted felons-turned-cooperators for whom prosecutors urge reduced sentences and community members who attested that Jemal's generosity changed their lives. "They have committed numerous, numerous crimes," Urbina said of the informants. "They have lived such a corrupt life that it now helps them buy their way out of trouble." By contrast, Jemal had demonstrated a genuine selflessness, he said, helping homeless men get work, giving plane tickets to poor workers for family visits, even giving his beloved dog to a woman suffering mental anguish.

"One thing is clear: Mr. Jemal has devoted much of his adult life to good, charitable causes," Urbina said. "When I compare the valuable and worthwhile services [repeat offenders] provide to society and I see what Mr. Jemal has done over the course of his lifetime, it is inconceivable to me that I should impose the penalty proposed here. . . . Being fair means being fair."

Will Genarlow Wilson get Duke justice?

The sad Genarlow Wilson case from Georgia (background here and here and here) is generating more press in the wake of the upstanding way in which North Carolina's Attorney General admitted mistakes in the Duke case. Here is some of the latest coverage and commentary:

Capital times at SCOTUS

On Wednesday, the Supreme Court will hear argument in Panetti (previously discussed here and here; lots more coverage collected here at How Appealing). If SCOTUS sticks to the narrow question on which cert was granted, its ruling will be virtually inconsequential to the operation of the death penalty. But, if some Justices seize Panetti to address broader issues, the case could become a blockbuster. Oral argument today may provide some clues on how some Justices are approaching the case.

Meanwhile, yesterday the Justices heard argument in Uttecht v. Brown, a case that could greatly impact both capital jury selection and the review of death sentences in federal courts. The oral argument transcript is available at this link, and Kent Scheidegger has an analysis of some of the issues that arose during argument in this post at Crime & Consequences.

Fifth Circuit reverses another below-guideline sentence

The Fifth Circuit has reversed another below-guideline sentence in US v. Sanchez, No. 06-20193(5th Cir. Apr. 17, 2007) (available here). Sanchez involves a high-profile alien smuggling case, and the Fifth Circuit panel ultimately concludes that the district court made multiple errors: "In imposing the non-Guideline sentence in this case, the district court relied on clearly erroneous factual determinations, put significant weight on an improper factor, and ignored factors that should have been given significant weight. For those reasons, we hold that the sentence is unreasonable."

April 17, 2007

New student note on "Executioner Identities"

Professor Debby Denno was kind enough to send me an advance (and postable) copy of a new student note soon to appear in the Fordham Law Review entitled "Executioner Identities: Toward Recognizing A Right To Know Who Is Hiding Beneath The Hood." Here are selections from the introduction:

The doctor had more than twenty malpractice suits filed against him. Two hospitals had revoked his privileges. He testified that he had dyslexia and sometimes confused drug dosages. This same doctor also supervised the lethal injections of fifty-four inmates in Missouri over a decade....

Part I of this Note briefly looks to the history of the executioner in the United States and then examines the basis for a First Amendment right of access and when that right can be limited. Part II highlights how this right applies in the context of the lethal injection executioner. Part II first focuses on the justification for concealing the executioner's identity before exploring why the public and the inmate have a right to know the identity. Part III argues that the right of the inmate and public to know the identity outweighs the state and prison's speculative concerns on which the grounds for concealment are based. Part III initially advocates that an executioner's name and qualifications should be revealed but then argues, in the alternative, that if states provide substantiated justification for concealing an executioner's identity, then the identity can be concealed, but specific qualifications of the executioner should be revealed.

Some (needed?) help for SCOTUS on Sixth Amendment "first principles"

As detailed here and here, this morning was civil at the Supreme Court: the Court released opinions in three civil cases (and the vote alignments in all three cases seem notably unpredictable). As Lyle Denniston notes, now the earliest-argued case still undecided is "James v. U.S. (05-9264), on whether a state conviction for attempted burglary can be treated as a violent felon under federal armed criminal sentencing law." More opinions are to be released tomorrow, so maybe then we will finally see a SCOTUS version of "Sweet Baby James."

Of course, Claiborne and Rita are still pending, and my anticipation is starting to build (even though I doubt we will see these decisions until June). Adding to my anticipation is an e-mail I received from YLS Professor Kate Stith, who reports to me that her student "Richard Re, YLS '08, has a nuanced exposition of the argument [that] Sixth Amendment 'first principles' resolve the apparent tension between Blakely and Booker I, on the one hand, and Booker II, on the other." That explanation can be downloaded below, and here is a taste to whet your appetite:

If reasonableness review is to be consistent with the Sixth Amendment, then Sixth Amendment doctrine must be re-conceptualized so as to differentiate between sentencing guidelines imposed by legislatures and those generated by judges themselves. But why would the Blakely and Booker rules apply only when the legislature is involved? In order to answer this question, we have to return to Sixth Amendment first principles.

Using technocorrections to combat DUI

This story from Arizona provides another example of a technocorrections proposal in the works:

In a move welcomed by advocates for tougher laws against drunken driving, Arizona legislators are moving toward requiring DUI offenders to use ignition interlocks for at least a year when resuming driving after first convictions.

The House is poised to vote on a DUI sentencing bill recently amended to add a requirement that convicted DUI offenders equip their vehicles with the breath-test devices to analyze a person's blood-alcohol content. The ignition interlock system will not allow a vehicle's ignition to operate if the person's alcohol content is above a certain limit....

If the requirement for first-time DUI offenders is enacted, Arizona would be following the lead of New Mexico. That state adopted a similar mandate in 2005. Arizona already requires that some DUI offenders use ignition interlocks when their driving privileges are restored but not for first offenders of regular DUI.... Cost for the devices, typically $120 for installation and $60-$70 a month for monitoring, would be borne by offenders.

I have heard various stories about the efficacy of ignition interlocks. Readers familiar with the technology are encouraged to reports on their experiences and perspectives in the comments.

April 16, 2007

The really big SCOTUS capital case this week

Because the issue involves a somewhat crazy issue about a possibly crazy killer, the Panetti case to be argued before the Supreme Court on Wednesday is getting significant media attention. (See my prior post here along with more recent coverage from the AP, from the Houston Chronicle, and from the San Antonio Express.) However, a capital case to be argued before SCOTUS tomorrow, Uttecht v. Brown, is a case which surely will have much greater impact on the administration of capital punishment and on the review of death sentences in federal courts.

Lyle Denniston provides over at SCOTUSblog has this helpful oral argument preview of Uttecht. Here is how it begins:

A single jury panel member named Richard Deal, excluded from serving in a gruesome murder case that went to trial 14 years ago in Washington State, is at the center of a potentially historic case on jury selection in death penalty cases due for argument at 1 p.m. Tuesday. The case of Uttecht v. Brown (06-413) puts before the Court a mixture of issues about federal court authority to review jury selection in state criminal courts, about the ease with which judges may bar jurors with reservations about the death penalty, and about how to apply a key Supreme Court precedent on capital trials (Wainwright v. Witt, 1985). It also involves the ongoing conflict between the Supreme Court and the Ninth Circuit Court over how rigorously to read the habeas-curbing provisions of the Antiterrorism and Effective Death Penalty Act of 1996.

The on-going MPC sentencing project

A month from today at the American Law Institute's Annual Meeting, Tentative Draft No. 1 of the "Model Penal Code: Sentencing" project is up for approval. As detailed here, work on this project began back in 1999 because of the need to update the MPC's approach to sentencing "in light of the many changes in sentencing philosophy and practice that have taken place in the more than 40 years since the Code was first developed."

The project's progress has been disrupted somewhat by the Blakely revolution, and the project's direction has been questioned by ALI member Michael Marcus, circuit-court judge for Multnomah County, Oregon. As detailed in this statement, Judge Marcus proposes to make a number of motions critical of the draft in its present form. The project's Reporter, Professor Kevin Reitz has this response.

The debate over the substance of the new MPC sentencing provisions is very interesting, but it is not clear that it is very important. These days, there are no shortage of ideas for sounder sentencing reform; the real challenge, as California continues to demonstrate, is to be able to manage or alter the skewing influence of politics so that sounder sentencing reforms can be effectively exacted and implemented.

Capital punishment news and notes

Perhaps it is fitting to have a capital punishment post right after a report on today's horrific mass shooting in Virginia. In this post, however, I will only point to all the new and significant capital punishment developments covered well in new posts at:

Among all the important stories covered at these blogs, I hope my students (and others) will be sure to chack out this Cincinnati Enquirer article entitled "Fatal mistakes: When death sentences are overturned, it's usually because the accused killer's lawyer made them." It confirms my view that anyone interested in a well-functioning capital punishment system needs to put a lot more resources into capital defense services.

A campus tragedy "of monumental proportions"

A gunman opened fire in a dorm and classroom at Virginia Tech on Monday, killing 21 people in the deadliest campus shooting in U.S. history. The gunman was killed, but it was unclear if he was shot by police or took his own life.

"Today the university was struck with a tragedy that we consider of monumental proportions," said Virginia Tech president Charles Steger. "The university is shocked and indeed horrified."

The university reported shootings at opposite sides of the 2,600-acre campus, beginning at about 7:15 a.m. at West Ambler Johnston, a co-ed residence hall that houses 895 people, and continuing about two hours later at Norris Hall, an engineering building. Some but not all the dead were students. One student was killed in a dorm and the others were killed in the classroom, Virginia Tech Police Chief W.R. Flinchum.

The name of the gunman was not released. It was not known if he was a student.

Because I have spent most of my adult life on college campuses, this crime story impacts me emotionally more than most. My heart and thoughts go out to all the victims and everyone impacted by this tragic crime.

I mention this (still developing) story in part because these kinds of horrific, historic crimes have a way of impacting many criminal justice and sentencing issues. Whether the debate is gun control, campus security, mental illness or the death penalty, today's VT shooting will likely impact, both consciously and unconsciously, many people's perspectives.

UPDATE:The latest version of the AP story now has this telling sound-bite coming from the White House:

A White House spokesman said President Bush was horrified by the rampage and offered his prayers to the victims and the people of Virginia. "The president believes that there is a right for people to bear arms, but that all laws must be followed," spokeswoman Dana Perino said.

MORE: Sadly, the death toll keeps rising; the latest AP update now reports 32 dead along with the gunman. And the emerging details from what folks are calling the "College Columbine" ensure that this tragic event will be making headlines for a long time.

Assessing the slow SCOTUS pace

Over at SCOTUSblog, Tom Goldstein has this new post entitled "The Pace of the Court's Decisionmaking." Here are excerpts from an interesting read:

One possible explanation for the falloff in output that I considered was that the Court is taking longer in its internal deliberations in an effort to produce greater unanimity, which is an expressed goal of the Chief Justice. That may indeed be occurring; until we see the opinions released later in the Term, there is no way to know for sure. But the numbers so far do not suggest a trend towards greater unanimity. At this point last Term, of the post-argument decisions, 17 were unanimous and 3 were 5-4; this Term, 6 are unanimous (far fewer) and 5 are 5-4 (more)....

From outside the building, there is no obvious cause for the Court's slowed decisionmaking. The best guess from my perspective is that there is a natural transition that comes with the change in the Court's composition, including its leadership. Before the addition of two new colleagues, the Justices (who had sat together for more than a decade) could write with great confidence in where the rest of the Court would come out and what it would find acceptable. Now there is naturally more hesitancy and perhaps there are more and longer exchanges between the chambers. The topic receives attention at all, perhaps, only because of the reduction in both cert. grants and written opinions in a single Term.

It bears stating that the Court's reduced output has had no adverse consequences. No decision is pending in an urgent matter. And the Supreme Court still issues rulings faster than almost any other court. No one doubts that the Justices will decide this Term's cases before the summer recess begins in July.

Though I think some defendants sitting in federal prison might disagree with the assertion that no decision is pending in an urgent matter, Goldstein's sober analysis helpful highlights that the Court's slower pace this Term is likely of little long-term consequence.

More ugly details about the Georgia Thompson case

Adam Cohen in the New York Times today has this interesting commentary on the remarkable Georgia Thompson case (background here). The commentary, entitled "A Woman Wrongly Convicted and a U.S. Attorney Who Kept His Job," questions why US Attorney Steven Biskupic "turned a flimsy case into a campaign issue that nearly helped Republicans win a pivotal governor's race." Here's how the commentary ends:

Mr. Biskupic insists that he prosecuted Ms. Thompson only because he believed a crime was committed, and that he did not discuss the political implications of the case or the timing with anyone in the Justice Department or the White House. Congress has asked the Justice Department for all e-mail messages about the case to help resolve the matter. But even if there were no discussions, Mr. Biskupic may have known that his bosses in Washington expected him to use his position to help Republicans win elections, and then did what they wanted.

That would be ironic indeed. One of the biggest weaknesses in the case against Ms. Thompson was that to commit the crime she was charged with she had to have tried to gain personally from the contract, and there's no credible evidence that she did. So Mr. Biskupic made the creative argument that she gained by obtaining "political advantage for her superiors" and that in pleasing them she "enhanced job security for herself." Those motivations, of course, may well describe why Mr. Biskupic prosecuted Ms. Thompson.

April 15, 2007

Can and should AG Gonzales be blamed for the uptick in violent crime?

This week will surely be consumed with the stories surrounding AG Alberto Gonzales' hearings before the Senate to defend the US Attorney firings. Today the fun starts with this Washington Post piece authored by Gonzales detailing what are sure to be themes in his testimony. And this one sentence toward the end of the Gonzales piece really got me to thinking:

During the past two years, we have made great strides in securing our country from terrorism, protecting our neighborhoods from gangs and drugs, shielding our children from predators and pedophiles, and protecting the public trust by prosecuting public corruption.

Specifically, I am wondering what evidence exists to support the assertion that "great strides" have been made in these areas over the last two years while AG Gonzales has been the nation's top prosecutor. Here's my own off-the-cuff assessment of the Gonzales record:

Terrorism: We've not had a major terrorist attack in the US during the Gonzales term, though there seems to be evidence that we are not using homeland security dollars wisely and that privacy interests are not be respected.

Protecting our neighborhoods: As this article details, it appears that there has been a significant increase in violent crime in 2005 and 2006. The article notes "heightened criticism of the federal government from many police chiefs and state law enforcement officials, who complain that the Bush administration has retreated from fighting traditional crime in favor of combating terrorism and protecting homeland security."

Shielding our children: Gonzales helped DOJ create a national sex offender registry, which seems like an important and valuable develop. The DOJ has not shown much leadership on the important reentry initiatives that President Bush spoke grandly about in his 2004 State of the Union address.

Protecting the public trust: I am not sure how to assess the public corruption issues, but the ugliest part of "purgegate" is how it must lead everyone to question whether public justice or just personal politics defines agendas for both Main Justice and for local prosecutors.

I would be eager to hear reader assessments of how much justice the Justice Department has been helping to produce under the control of AG Gonzales. Needless to say, I have been less than impressed with its work in sentencing area, including DOJ's mysterious eagerness to get death sentences while acceptance of de facto moratorium on federal executions (discussed here).

Examining votes of circuit judges in capital review

The Cincinnati Enquirer has this strong article examining the work of the Sixth Circuit in capital habeas cases entitled "The politics of life and death: An inmate's fate often hinges on luck of the draw." Here is how it begins:

Paul Gregory House pinned his hopes for survival on the U.S. 6th Circuit Court of Appeals in Cincinnati five years ago when he challenged his death sentence for rape and murder. He won.

Two years later, House's case returned to the 6th Circuit for what amounted to a new hearing on the same issues. The only change was the addition of four conservative judges to the court. He lost.

Same evidence. Same arguments. Different outcome. House learned the hard way that a federal death-penalty appeal can be a game of chance. If the judges assigned to a case were appointed by Democratic presidents, odds are good they will overturn a death sentence because of new evidence or mistakes made during the trial. If the judges were appointed by Republicans, the chances are slim.

That's especially true at the 6th Circuit, the powerful and deeply divided court that decides death penalty appeals from Ohio, Kentucky and Tennessee. An Enquirer analysis of the court's death-penalty decisions since 2000 shows that 6th Circuit judges consistently voted along partisan lines, just as they did in House's case:

Judges appointed by Republican presidents voted to deny inmate appeals 85 percent of the time. Judges appointed by Democrats voted to grant at least some portion of those appeals 75 percent of the time. Republican appointees dissented from majority opinions 25 times, always arguing against the inmate. Democratic appointees dissented 29 times, all but once arguing for the inmate.

"That is very stark," said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., a nonprofit group that has been critical of capital punishment. "It makes blind justice look like part of the political system."

Dallas Morning News calls for death to die in Texas

Though I doubt this development will matter much politically, it still is noteworthy that today the Dallas Morning News has this editorial entitled "Death no more: It's time to end capital punishment." Emphasizing innocence concerns, here is a portion of the pitch:

And that uncomfortable truth [about an executed man's possible innocence] has led this editorial board to re-examine its century-old stance on the death penalty. This board has lost confidence that the state of Texas can guarantee that every inmate it executes is truly guilty of murder. We do not believe that any legal system devised by inherently flawed human beings can determine with moral certainty the guilt of every defendant convicted of murder.

That is why we believe the state of Texas should abandon the death penalty ― because we cannot reconcile the fact that it is both imperfect and irreversible.

Flaws in the capital criminal justice system have bothered troubled us for some time. We have editorialized in favor of clearer instructions to juries, better counsel for defendants, the overhaul of forensic labs and restrictions on the execution of certain classes of defendant. We have urged lawmakers to at least put in place a moratorium, as other states have, to closely examine the system. And yet, despite tightening judicial restrictions and growing concern, the exonerations keep coming, and the doubts keep piling up without any reaction from Austin.

From our vantage point in Dallas County, the possibility of tragic, fatal error in the death chamber appears undeniable. We have seen a parade of 13 men walk out of the prison system after years ― even decades ― of imprisonment for crimes they didn't commit. Though not death penalty cases, these examples ― including an exoneration just last week ― reveal how shaky investigative techniques and reliance on eyewitnesses can derail the lives of the innocent.

Massachusetts new Governor looking at sentencing reform

It is refreshing to see new officials bringing a healthy new perspective to sentencing issues. According to this Boston Globe article, that's what's happening in Massachusetts:

Governor Deval Patrick has launched a comprehensive review of the state's mandatory sentencing laws, an effort endorsed by the attorney general and the chief justice of the state trial courts to help stop the "revolving door" in the state's prison system. "People come out more dangerous than when they went in," Patrick told the Globe last week, explaining his administration's focus on fundamentally changing the philosophy of the criminal justice system.

Administration officials say that the mandatory minimum sentences, which eliminate judges' discretion in certain cases, drive up the cost of corrections and make it less likely that prisoners will participate in programs that could help them reenter society when they are released. Because those prisoners cannot get out early for good behavior, critics say, they have little incentive to participate in programs while in prison. And they are barred by law from enrolling in work release, rehabilitation, or furlough programs outside their institution, according to Mary Elizabeth Heffernan, an undersecretary for public safety. Once they wrap up their sentence, she added, they are sent back into society unsupervised.

The effort to revamp these laws is part of a larger administration policy aimed at preparing criminals for life after prison, including changes to a program that allows employers to review the criminal records of potential employees. Without a comprehensive plan to reintegrate the thousands of criminals who get out of Massachusetts prisons each year, Heffernan said, many will return to crime.

Administration statistics indicate that nearly half commit a crime during their first year after release. "The concept of the revolving door -- the governor and the secretary want to look at how we stop that," Heffernan said, referring to Public Safety Secretary Kevin Burke. "People are moving away from the breaking-rocks portion of the program. This administration is going to take a more thoughtful and appropriate look at what works and what doesn't."